As most of you likely have heard, the Occupational Safety and Health Administration (OSHA) has suspended enforcement of its Emergency Temporary Standard (ETS) on vaccine mandates for large private businesses after a federal appeals court blocked the measure
OSHA posted a message regarding the ETS on its website on November 12: https://www.osha.gov/coronavirus/ets2
“The court ordered that OSHA 'take no steps to implement or enforce' the ETS [Emergency Temporary Standard] 'until further court order.' While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” OSHA said.
Greg Guidry provided the following advice from Ogletree Deakins.
ETS Update - OSHA announced it is complying with the stay and has "suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
The agency is not giving up yet and “remains confident in its authority to protect workers in emergencies.” But the agency did not expressly say it remains confident in the ETS. I don’t know if that omission tells us anything yet, but it is noticeable.
What does this mean for employers?
Here are a few things to consider.
1. Part of OSHA’s attempted implementation includes the deadlines of 12/5/21 and 1/4/22 for various requirements under the ETS. Although OSHA has said nothing further than the above statement, it is reasonable for employers to conclude the deadlines are on hold. If the stay were to be lifted, OSHA would have to set new compliance deadlines.
2. It would be reasonable for employers to completely pause preparations at this point and await the fate of the ETS in the 6th Circuit and SCOTUS.
3. It would also be reasonable for employers to continue “behind the scenes” preparations that are not employee-facing. For example, work on policies, procedures, and templates, but don’t start gathering employees’ vaccination information or implementing vax or test requirements.
4. Employers should also be monitoring state law developments that may impact vaccination mandates – or at least set up a direct conflict with the ETS if it survives the legal challenges. Florida, for example, convened a special session this week that will likely produce a new law limiting employers’ ability to mandate vaccinations for employees.
5. Employers should also remember that OSHA's national emphasis program for COVID remains in place and the agency can still use the general duty clause, Section 5(a)(1) of the Act, to cite employers.
Stay tuned and stay safe!
